J. M. Griffin Co. v. Jernigan

• Decision Date: 30 April 1934
• Docket Number: 31149
• Citation: 154 So. 342,170 Miss. 343
• Court: Mississippi Supreme Court
• Parties: J. M. GRIFFIN CO. v. JERNIGAN et al

154 So. 342

170 Miss. 343

J. M. GRIFFIN CO. v. JERNIGAN et al

No. 31149

Supreme Court of Mississippi

April 30, 1934

Division B

1. VENDOR AND PURCHASER.

Where possession is delivered to vendee under binding contract of sale, vendor retaining title until purchase money is paid in full, transaction is, in legal effect, same as conveyance of title and taking of security by way of mortgage.

2 MORTGAGES.

Stranger to mortgage cannot interpose mortgage or any of its terms as defense against mortgagor seeking to recover specific property or damages for its injury or destruction.

3. LOGS AND LOGGING. Provision in contract for sale of timber rights obligating vendee to procure release before cutting particular tract as evidence of payment on total purchase price, was for benefit of vendor, and could be waived.

Contract for sale of timber rights provided for the payment of a total consideration, but required only a small cash payment, the balance to be paid from proceeds of operation of sawmill plant and the progressive utilization of the timber. The contract further provided that, after the vendee had cut and manufactured stipulated part of timber, then, as to further cutting, the vendee was to make stipulated payments which were to be credited on the total purchase price and interest and which designations and payments should be evidenced by a release of the particular lands covered by the designation.

4. APPEAL AND ERROR.

Defendant cannot raise questions which properly belong only to other parties and which those other parties may rely on or waive as they see fit.

5. LOGS AND LOGGING.

Owners of timber tract, as condition precedent to cutting of timber by vendee of timber rights, held not entitled to assert vendee's failure to procure release of particular tract as required by contract between vendee and his vendor which owned timber by mesne conveyances from owners.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Noxubee county HON. T. P. GUYTON, Chancellor.

Suit by the J. M. Griffin Company against H. L. Jernigan and others. From a decree dismissing the suit, the complainant appeals. Reversed, and cause remanded.

Reversed and remanded.

E. M. Livingston, of Louisville, and W. B. Lucus, of Macon, for appellant.

The words in the deed are construed most strongly against the grantor.

Soriar v. Harrison County, 50 So. 443.

When the vendor by lawsuits and divers interferences has prevented the vendee from cutting and removing timber and trees within the time limited in the deed, the vendee's right to a reasonable time thereafter in which to remove will be declared and enforced by an appropriate decree in equity.

Roberson v. Little, 76 So. 940; 34 L. R. A. (N. S.) 120.

Where the owner of land sold certain timber thereon to be removed within a reasonable time, and afterwards prevented removal by threatening to shoot the purchaser if he removed it and it was not removed in the usual time, the owner is estopped by his conduct from asserting that it was not removed within a reasonable time.

Walker v. Cox, 96 So. 707; Hurst v. Taylor, 107 S.W. 743; Peshtigo Lbr. Co. v. Ellis, 100 N.W. 834; U. S. v. Mason Lbr. Co., 172 F. 714; Halla v. Rogers, 176 F. 709; Hampton v. Cope, 139 S.W. 937; Saunders v. Clark, 22 Iowa 275; Monroe v. Bowin, 26 Mich. 529.

Green, Green & Jackson, of Jackson, for appellant.

Appellees had no right at this date in said timber whereunder they might with force of arms drive off appellant in good faith claiming under a contract.

Ladnier v. Ingram Day Lbr. Co., 100 So. 369, 135 Miss. 632; Rogers v. Lbr. Mineral Co., 115 Miss. 339, 76 So. 145; Wheat v. J. J. White Lbr. Co., 116 So. 104, 150 Miss. 615; Finkbine Lbr. Co. v. Saucier, 116 So. 737, 150 Miss. 446; Clark v. Ingram Day Lbr. Co., 90 Miss. 479, 43 So. 813; Smith v. Salmen Brick & Lbr. Co., 118 So. 179, 151 Miss. 329; Miller v. Mims, 150 So. 191.

Appellant having purchased and agreed to pay approximately six hundred thousand dollars for the property here in issue, together with other property, was vested by that contract with right to cut and thereasto full proof was made.

Lay v. Great Southern Lbr. Co., 79 So. 822, 118 Miss. 636; D'Aquilla v. Anderson, 120 So. 437, 153 Miss. 549; Wilson v. Kuykendall, 112 Miss. 486, 73. So. 344; 66 C. J. 703; Thompson v. Wheatley, 5 S. & M. 506; Wolfe v. Dowell, 13 S. & M. 108; Marble v. Whaley, 33 Miss. 157; Griffith Mississippi Chancery Practice, sec. 128; Moody v. Farr, 33 Miss. 192, 210; Watson v. Sawyers, 54 Miss. 64, 66; Kitchens v. Harrall, 54 Miss. 474; Rembert v. Key, 58 Miss. 533, 536; Carpenter v. Douglas, 61 So. 162, 104 Miss. 74; Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 293; Miss. Power & Light Co. v. Smith, 153 So. 376, 169 Miss. 447; 63 C. J. 902; Black v. Robinson, 61 Miss. 54; Miller v. Wesson, 58 Miss. 831; Roberson v. Little, 76 So. 940; 34 L. R. A. (N. S.) 120.

Appellant, under said contract, need not have done a vain thing, when appellee assumed absolutely that no right in the timber could, by any act done, have been obtained.

Brooms Legal Maxims (7 Ed.); City Bank Farmers' Trust Co. v. Schnader, 78 L.Ed. 373; Hills v. Bank, 105 U.S. 319, 26 L.Ed. 1053; Procter v. Sherman, 2 F.2d 165.

Appellee, having admitted the right of Griffin, wherefor cancellation was sought, may not take the law into his own hands.

New Orleans, etc., Co. v. Moye, 39 Miss. 374; Currie v. Railroad Co., 61 Miss. 730; 37 C. J. 287.

Denial of execution of contract was not sufficiently made under section 1587, Code of 1930.

Section 1587, Code of 1930; Wanita Mills v. Rollins, 75 Miss. 253, 22 So. 819; Brown v. Mortgage Co., 86 Miss. 388, 38 So. 312.

Misjoinder, complainant, Lamiss Lumber Corporation, not having been objected to prior to hearing, may not be taken advantage of.

Section 514, Code of 1930; Stauffer v. Garrison, 61 Miss. 67; Walker v. Hill, 66 Miss. 390; Darriell v. Dodds, 78 Miss. 912, 30 So. 4; Avera v. Williams, 81 Miss. 714, 33 So. 501; McInnis v. Rather, 111 Miss. 55, 71 So. 264; Belt v. Adams, 125 Miss. 387, 87 So. 666; Aven v. Singleton, 132 Miss. 256, 96 So. 165; Griffith Mississippi Chancery Practice, page 147, sec. 147.

Magruder, Walker & Magruder, of Starkville, for appellees.

Insofar as the law of this case is concerned, appellees stand on the proposition that neither John Jones nor Jessie James nor the J. M. Grillin Lumber Company had any right to confiscate Jernigan's remainder interest in the timber at issue without title thereto.

It is a certain proposition that no stranger to this title, no mere trespasser, could maintain an action in equity for specific performance and injunctive relief; and that is appellant's difficulty, an insurmountable obstacle.

Gilchrist-Fordney Co. v. Thigpen, 114 Miss. 182; Section 169, Griffith's Chancery Practice; Brown v. Bank, 31 Miss. 454; Hoy v. Hansborough, Freeman's Chancery Reports 542; Meek v. Humphreys County, 133 Miss. 386; Bank v. Phillips, 71. Miss. 54.

In suits to remove clouds from title, Griffith applies the general principle that complainant must be vested with title under his bill and evidence as a condition for relief.

Section 211, Griffith's Chancery Practice.

It is announced in all of these cases as a fundamental condition of recovery that complainant must be vested with title, regardless of the strength or the weakness of defendant's cause or even the entire absence of any title whatever in defendant.

The instant cause was not exactly a bill for the removal of alleged clouds on title; but that is its substantial intent and purpose, a purpose which cannot possibly succeed unless complainant alleges and proves its own title, in which respect the J. M. Griffin Company has entirely failed.

L. L. Martin, of Macon, for appellees.

We contend that all the issues in this case were correctly settled by the learned chancellor as shown in his opinion which in effect under the decree rendered gives the Federal Land Bank its prior lien on said timber.

There was serious conflict in the evidence as to the expiration of the time limited in said timber deed, and as to the exact date that said deed was executed. All of which has been by the decree of the learned chancellor resolved and adjudicated in favor of these defendants, although we recognize the fact that the chancellor as shown in his opinion was guided in making up his decisions by the facts as set forth in his opinion and law applicable thereto, and believing that on these issues, which have been fully covered in the brief of my associates, Magruder, Walker and Magruder, this case was correctly decided and that it was not necessary for a decision on the other issues involved, we do not now think it necessary to further discuss the other issues involved in this case, as to which the evidence is in conflict.

Argued orally by Garner Green, for appellant, and by L. L. Martin and W. W. Magruder, for appellees.

OPINION

Griffith, J.

The Lamiss Lumber Corporation was the owner of a sawmill, a logging railroad, and a large tract of timber and timber lands in this state. On the 3d day of May, 1932, the said owner entered into a written contract with the J. M. Griffin Company, appellant herein, the effect of which, taking all its numerous provisions into consideration, was that the owner, for a total consideration of the principal sum of about five hundred eighty-five thousand dollars, agreed to sell to the Griffin Company, and the latter agreed to buy, all said property, and to pay the entire of said consideration with interest, and it was a part of said agreement that immediate possession would be delivered to the purchaser, and such possession was delivered. If, however, it may be said that, because of the...